Howell, D. v Bostaran P/L - [1994] FCA 504

JUDGMENT No. . S!??, %

BETWEEN: -
Applicant

Am: -

First Respondent

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Second Respondent

-

Third Respondent

J5NAI-p-SF. D1 F U E W

Fourth Respondent

-

Fifth Respondent

On 28 April 1994, I published reasons for judgment in this matter and ordered that counsel bnhg in, within 14 dam minutes of the orders which they proposed.

GXaU: Davies J.
R@: 28 June 1994
ZkG Sydney

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Subsequently, I have been addressed briefly on the issues which remain

outstanding. In general, I agree with the revised figures put forward by Mr J.P.

Hamilton QC, senior counsel for the applicant. Those figures are as follows:-

Purchase price $25O,OOO

M: Value of chattels (J 27) u&&l
Balance 236,337
M: Price received by applicant

for chattels sold (JB 433) u!?Q

Balance 232,337

m: Stamp duty on contract of purchase
(without late payment penalty)

(h A) Za9P

Balance $239,577

2 ~fmperiodto3(vdlp1 S 21,572

3 h fm ycar ended W@92 S 9l,144

A Total s 3 5 w

the principle enunciated in Hunperfords v. Walker (1990) 171 CLR 125 and the In addition, Mr Hamilton has sought an award of interest up to the date of trial under

provisions of s.51A of the c 1976 (Cth).

The principal debate between counsel has turned on issues with respect to

interest. The following points were mentioned:-

(i)        To assist with the purchase of the business for $250,000, the applicant,
MS Denise Howell, borrowed $180,000 from Westpac Banking
Corporation.
(ii)       The calculation of the loss for the period up to 30 June 1991 took into account interest paid to Westpac of $23,697.
(iii)      The calculation of the loss for the years to 30 June 1992 should also take acount of the interest paid to Westpac.
(iv)      The calculation of lots for this period which appeared in my reasons of 28 April 1994 adopted an incorrect figure with respect to interest. Indeed, there is an unexplained mathematical error in the calculation of that loss. An additional $7,425 should be allowed in this respect,
making a total of $91,144 which includes interest paid to Westpac of
$34,450.

I would not allow any sum in accordance with the principle enunciated in

Hunperford v. -. In my opinion, no additional loss has been proved on the
balance of probabilities. In accordance with the usual practice, I would allow interest

under s.51A of the Federal Qurt of - a Act calculated in accordance with

Schedule J to the Rules of the Supreme Court of New South Wales.

C Stevens QC, senior counsel for the respondents, submitted that to allow interest on the purchase price would involve an element of double counting, for the

Mr

calculations take into account the interest paid to Westpac. However, I do not accept
that contention.

Section 51A provides a means of compensating an applicant for loss in the nature of interest which has occurred but has not been proven on the balance of probabilities. Interest is to be allowed "unless good cause is shown to the contrary". Provisions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howell, D. v Bostaran P/L

Details

AGLC: Howell, D. v Bostaran P/L [1994] FCA 504
Case: [1994] FCA 504
Decision Date: 28 Jun 1994

CaseChat Overview and Summary

Denise Howell, the applicant, sued the respondents for damages in relation to a business sale. The court had to decide on the amount of loss the applicant suffered and whether interest could be claimed. The applicant argued that the loss calculation should include interest paid to Westpac and that interest should be awarded under the Federal Court of Australia Act. The respondents contended that allowing interest would result in double counting. The court found that the loss calculation was incorrect and needed adjustment by $7,425. The court ruled that interest should be awarded under the Federal Court of Australia Act, as it provides a means of compensating for proven losses, and that this did not involve double counting. The court further ruled that depreciation should not be included in the loss calculation. The court ordered that the respondents pay the applicant $504,215, discharge the applicant's lease obligations, and pay the applicant's costs.

Orders